Nduli v Minister of Home Affairs and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Bezuidenhout J |
| Judgment Date | 03 March 2023 |
| Citation | 2023 JDR 0607 (KZP) |
| Docket Number | 1789/21P |
| Hearing Date | 26 October 2022 |
| Court | KwaZulu-Natal Division, Pietermaritzburg |
Bezuidenhout J:
Introduction:
The applicant, Ms Mandy Malinda Nduli, applies for an order that the customary marriage entered into between her and the late Mr Thokozani Praise-God Khumalo with identity number 821108 5404 080, on 12 December 2020, was done in accordance with the prescripts of the Recognition of Marriages Act 120 of 1998 (the Act).
She also seeks an order directing the first respondent, the Minister of Home Affairs, and the second respondent, the Director General of Home Affairs, to register the marriage and to issue a certificate confirming such marriage in terms of section 4(8) of the Act. These parties played no role in these proceedings.
Background:
The present application came before PC Bezuidenhout J who granted the above orders on 7 April 2021. On 12 May 2021 the third respondent, Mrs Bertina Khumalo, the mother of the late Mr Thokozani Khumalo (the deceased), brought an application to rescind the order granted on 7 April 2021. She also brought an urgent application seeking inter alia that pending the final determination of the rescission application, the relief granted on 7 April 2021 be stayed. Mr Thalente Hopewell Khumalo, the deceased's eldest son born off his marriage with the late Sharon Nomthandazo Khumalo, also attested to affidavits in support of the applications.
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Bezuidenhout J
The order of 7 April 2021 was subsequently rescinded by consent and the parties filed further affidavits to complete the main application. On 15 November 2021 the matter was referred for the hearing of oral evidence but such hearing never materialized and the matter came before me as an opposed motion.
The applicant' case
The applicant alleges that she brings the application on behalf of the deceased's three minor children.
The applicant and the deceased started a love relationship during 2015. Unfortunately, the deceased passed away on 15 February 2021.
The applicant alleges that the deceased had always intimated his intention to marry her. During March 2020 he introduced her to his four children, whom were living with him. Thalente Khumalo was the eldest, born on 7 April 2000. Senzekesihle Siyamthanda Khumalo was born 20 February 2008. Ntandoyenkosi Sahluko Khumalo born on 26 June 2011 and Mvelo Sisekelo Khumalo was born on 19 November 2013.
During October 2020 the deceased asked Mr Thembalihle Andile Sikhakhane and Prince Mutwana Mbonise Zulu (known as 'Abakhongi') to act as his emissaries and to negotiate and finalise the payment of lobolo with the applicant's family as well as the immediate handing over of the wife.
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Bezuidenhout J
The applicant alleges that the deceased's emissaries were not from his family as he did not have a relationship with his family or communicated with them, he had renounced them and lived as if they did not exist. The deceased did however have a relationship with his uncle, Mr Bhekinkosi Khumalo, whom he informed of his intention to conclude a customary marriage with the applicant.
The applicant's father, Dr Kwazi Henry Nduli, was contacted by the deceased and informed of the deceased's intentions. A date was set for 12 December 2020 for the deceased's emissaries to start negotiations. On 12 December 2020 the lobolo negotiations commenced with the applicant's family and an amount of R85 000 together with 5 live cows were agreed upon as lobolo. The cash amount was paid on the same date in the presence of the Induna, Mr Alfred Zamisa, who signed a letter to the effect. The applicant also annexed a handwritten note setting out the amount of lobola paid as well as the 5 live cows to be delivered.
The applicant stated that after lobolo negotiations, celebrations took place at her father's home. A sheep was slaughtered and the deceased's emissaries were given a crate of beer and whiskey as gifts. People danced until late in celebration of the union. The deceased had also bought a cow which was slaughtered at his home and the meat was cooked for those who were at his home when lobolo was being negotiated and also for the hand over celebrations.
On 13 December 2020 the applicant was taken to the deceased's home by her family and she was handed over to the deceased in the presence of deceased's emissaries, his uncle, his aunt, Mrs Shongane Khumalo, friends and colleagues. The deceased's aunt was involved in the preparation of food and the marriage preparations.
After the applicant was handed over by her family, the deceased performed certain rituals which included the burning of 'impepho' and talking to his ancestors about the customary union. The applicant was smeared with cow bile or 'inyongo' as part of the rituals and traditions as part of the deceased's process to accept her as umakoti at his home. He formally introduced her as his wife to everyone present at the celebrations.
After the celebrations, the applicant and the deceased commenced living together as husband and wife and did so until he passed away.
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Bezuidenhout J
The applicant stated that the deceased was content to only have his aunt and uncle involved in the process of getting married because of the strained relations with his family. It was therefore impractical if not impossible to take her as his bride to his family home.
The marriage was concluded with both the applicant and the deceased's consent and they were both over the age of 18 years at the time. They did not get around to formally registering the marriage with the Department of Home Affairs because of the conditions surrounding the Covid-19 pandemic and in order to avoid exposure to the risk of contracting Covid-19. Unfortunately, the deceased nonetheless became sick and succumbed to the illness on 15 February 2021
The applicant arranged and attended the deceased's funeral which took place on 20 February 2021. The program included an item where someone from her family would speak.
The applicant filed confirmatory affidavits by Thembalihle Sikhakane, her father, Dr Ntuli and Mrs Shongane Khumalo.
The third respondent's case
The third respondent's opposition to the relief being claimed centres around the validity and/or existence of the applicant's marriage to the deceased. She alleges inter alia that there was no celebration of the customary marriage, there was no delivery of gifts, referred to as 'ingqibamasondo', by the applicant, no delivery of gifts by the deceased to the bride's family, referred to as 'izibizo', and that there was only the payment of lobola. There was furthermore no handing over of the applicant to the deceased's family.
The third respondent alleged that according to the applicant she was handed over to their family on the 13 December 2020 and that she was received by Mr Bhekinkosi Khumalo, the deceased's uncle. This is however not what the applicant stated in her
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Bezuidenhout J
affidavit. She stated that she was handed over to the deceased in his uncle's presence as well as in the presence of his emissaries.
The third respondent placed reliance on an affidavit made by Mr Bhekinkosi Khumalo. He stated inter alia that on 11 December 2020 the deceased requested to see him. He confirmed that the deceased had sent a delegation to Estcourt to negotiate lobolo for him. He mentioned the names of Prince Mbonisi Zulu and Thulasizwe Ntenga. He stated that he attended on the deceased's home again on 12 December 2020 and was informed that half of the lobola had been paid in cash and the balance would be paid later. He alleges that the deseased told him that he was not in a hurry to finish lobolo. He confirmed that from the document put up by the applicant it is clear that the live cattle were not delivered. He was clearly mistaken about the payment of lobola as it is clear that the full amount was paid in cash.
Mr Khumalo denied that the applicant was brought to the deceased's house on 13 December 2020. He does not say whether he was there the whole day into the evening or when he left. He denied that the Nduli family came to the funeral and he stated that the Khumalo family has not met the Nduli family. He denies that there was a handing over ritual of the bride and the customary celebration of the customary union. He also stated that there had not been the delivery of the gifts (ukuhambisa kwezibizo) where the family of the bride supply a list of people who must be given gifts by the bridegroom.
Mr Khumalo also pointed out that Mrs Shongane Khumalo was not a blood relative of the deceased but merely someone employed by him to look after his children. Mr Khumalo stated that he had read the applicant's founding affidavit and that from what is stated relating to the applicant and the handing over of the bride, such averments are false and not true. It amounts to a bare denial of the majority of the allegations made by the applicant.
The third respondent also placed reliance on an affidavit by Mr Thulasizwe Ntenga, which was filed in the urgent application. He admitted that he attended the lobolo
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Bezuidenhout J
negotiations at the Nduli home. He stated that the applicant's statement that the lobolo was determined at R85 500.00 was incomplete as there was also five live cows to be delivered. He clearly did not read the applicant's affidavit...
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